Monday, April 21, 2008

Judge throws out the Aaron Patterson Racial Profiling case at the eleventh hour: Speedy appeal is planned...

The Battle to End Racial Profiling...
Precedent setting case axed by judge just days before trial
Reprinted with permission of Bonita Gooch
Owner/Editor of The Community Voice newspaper (Wichita)

Aaron Patterson was ready for his day in court. After two years of preparation, Patterson and his attorney’s Uzo Ohaebosim and Lawrence Williamson were ready to faceoff against the City of Wichita Police Department. But just 12 days before they would finally get their chance to prove the northeast Wichita stop of Patterson was in fact racial profiling, a judge stopped their train right in its track.

Patterson’s case, scheduled to begin April 29 in Sedgwick County District Court, would have been the first case heard under Kansas’ relatively new Racial Profiling Law. While only the details of Patterson’s stop by the Wichita police would have been heard in the courtroom, if he prevailed, the results of his lawsuit could have had far reaching affects for African Americans across the state.

In 2005, Patterson was stopped while driving in Northeast Wichita shortly after he was seen talking to someone the police allege was a known drug dealer. The police followed him until they say he failed to signal, pulled him over, searched his car and found nothing illegal. It was a typical neighborhood stop, one brother and several cops; long and drawn out.

Unlike hundreds of other African Americans selectively stopped for minor traffic infractions, Patterson didn’t let the incident stop. He didn’t just pay his fine, suck the incident up as a fact of life for African Americans and move on. Instead, in accordance with the state’s Racial Profiling Law, Patterson filed a complaint with the Kansas Human Rights Commission.

KHRC thoroughly investigated his claim and ruled there was probable cause to believe Patterson was racially profiled. The City of Wichita maintained the stop was not a case of racial profiling.

Not surprising, said Kevin Myles, president of the Wichita Branch NAACP, “The Wichita Police Department investigated more than 40 Racial Profiling complaints that year and exonerated the officers in all cases,” said Myles. "In fact, the Wichita Police Department has never found for (in favor of) a citizen in a Racial Profiling case.”

The City filed two separate motions to dismiss the case. Both were denied. Finally, the case was set to begin on April 29. But, just 12 days before the trial was set to begin a judge threw out the case citing, contrary to the KHRC’s finding, a lack of probable cause.

“We are going to push for a speedy appeal,” said Kevin Myles only moments after hearing about the ruling. “This would have been a precedent setting case and we just can not stand to have it dismissed by a single judge. This is an issue the people (a jury) need to decide.”

Pretext Stops
Patterson, Ohaebosim, Williamson, Myles and the KHRC all agree, when the police officer pulled Patterson over it was a classic “pretext stop.” A "pretext stop" is a stop in which the officer detains the citizen for a minor crime (i.e. traffic offense) because the officer actually suspects the person of involvement in a major crime (i.e. drug possession). For police departments across the country, pretext stops are common operating procedure. For many African Americans who are determined racial profiling exist, "pretext stops" are disproportionately targeted at their race and annoying.

The most frequent reasons given to “legitimize” the stop are: wide turn, failure to signal a turn 100 feet from the corner and tires crossing the center line.

“They are items that are difficult for the driver to disprove,” says Myles. “However, just as the name implies, they are merely the 'pretext' to effectuate the stop. The decision to stop the vehicle was made before the infraction took place.”
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Are pretext stops illegal?
The 1996 case, Whren v. United States, is most often used to validate pretext stops. In this Washington, D.C. case, two young African-American men were pulled over for failing to signal their turn. When the police approached their car, they saw bags of crack cocaine in clear site. The two men maintained the case represented an instance of selective enforcement of the law based on race, because their traffic violation might have gone unnoticed if they had not "fit the profile" for drug dealers in the area in which they were stopped. They argued that their 14th Amendment rights of unreasonable search and seizure had been violated.

The court was not very sympathetic to their claim of violation of their 14th Amendment rights and upheld the validity of the search. However, the justices implied in their ruling that a better approach may have been to argue the violation of their 4th Amendment rights of equal protection under the law.

Based on this ruling, “most police departments will tell you, WPD included, that pretext stops are legal, but that is not quite true,” said Myles, bringing attention to what he feels is a clear opening in the court’s ruling. “The Supreme Court upheld convictions for items found as a result of a pretext stop, but they have never ruled on the legality of the practice itself. This case will be the first where the court is specifically asked to rule on the legality of pretext stops.”

Ohaebosim and Myles were prepared for the City’s attorneys to use Whren as part of their argument. However, Ohaebosim said the Patterson case, which was scheduled to be heard in state court, should have been a test of the Kansas Racial Profiling Law.

“This isn’t a federal statute, it (the Kansas Racial Profiling Law) is totally independent of federal law,” said Ohaebosim. “They couldn’t come in and say ‘the federal law says this.’”

Myles, who was involved in the drafting of the Kansas Racial Profiling Law said the committee’s goal with the bill was to define pretext stops as racial profiling.

“Our reasoning was simple. At the moment an officer decides that he or she wants to stop and search a specific vehicle, the driver of that vehicle has broken no law, committed no infraction, or done anything that would warrant police investigatory activity,” commented Myles. “If there were a legitimate reason to stop the vehicle, they would simply stop them on that basis. They wouldn't need to use a minor traffic infraction as a pretext. So if the deciding officer has no legitimate reason to stop the vehicle outright, upon what then is he or she basing the decision to effectuate the stop?”

“All that can be known at the time of the stop is the appearance of the car and the appearance of the driver. And as I've stated within the Racial Profiling Task Force meetings, if the Police are not looking for someone who fits my description, then my description should not cause me to be stopped and investigated.

“An officer can’t know simply by looking whether a driver has a valid license, carries insurance, or whether there is a warrant for the arrest of the driver or another occupant of the car,” said Ohaebosim. “But the officer can see whether the person is Black or White. What statistics show is that police use race as a way to sort those they are interested in investigating from those they are not.”

Two independent studies of stops made by WPD have shown the department disproportionately stops African Americans. In 2006, The Community Voice reviewed statistics of tickets written by WPD for a broad group of infractions covering illegal turns and failure to signal, and found an alarmingly disproportionate number of these tickets were written in East Wichita and to African-American drivers. While WPD acknowledges the disproportionate nature of these findings, they still have not ruled that any single officer ever has racially profiled an African-American driver.

Patterson’s case might have changed that.
Although he and all of the party’s involved are upset, Myles remains confident the case will finally be heard on appeal.

“It (the case) deserves its day in court", said Myles. “To throw it out was just cowardly.”






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